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Archive for December 8th, 2011

Can the USPTO Be Sued Under the APA for Issuing Bad Patents?

Posted On: Dec. 8, 2011   By: Scott A. McKeown
USPTO-LawsuitInfringement Defendant Attempts to Prevent/Undo Patent Issuance by APA Action

On Tuesday the CAFC heard arguments in the case of Pregis Corporation v. Kappos and Free Flow Packaging Intl. At issue in this case was a cross appeal of under the Administrative Procedure Act (APA) alleging that the USPTO had issued U.S. Patent 7,361,397 in an arbitrary and capricious manner. The ‘397 Patent is directed to plastic film used in machines that manufacture the now ubiquitous air pillows found in shipping containers.

Yet, rather than going through the time and effort to necessary to sue a government agency on a seemingly novel cause of action, why didn’t appellant Pregis simply seek reexamination of the ‘397 Patent? Read the rest of this entry »